Arbitrator concludes Doctrine of Frustration does not provide grounds for termination

August 12, 2004

An arbitrator recently reinstated a group of grievors whose employment had been terminated following extensive absences from work due to workplace injuries, and who were not capable of returning to work. Some of the grievors had been absent from work since 1989.

The basis relied on by the employer to dismiss the employees was not “innocent absenteeism,” but rather that their extended absences from work had “frustrated” the contract of employment, thus justifying their dismissal. In grieving the dismissals, the Union took the position that “doctrine of frustration” was not applicable to employment relationships regulated by a collective agreement.

The arbitrator agreed with the Union and upheld the grievance.

In reinstating the employees, the arbitrator noted that the collective agreement contemplated the termination of employees for just cause, which could, in the circumstances, include “innocent absenteeism”. However, he noted, the employer had not alleged innocent absenteeism as cause for the employees’ termination. As a consequence the grievance was successful as the terminations on the basis of the doctrine of frustration violated the collective agreement.